The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 12, 2021
Plaintiff-Appellee,
v No. 351875
Monroe Circuit Court
JESSICA LYNN MORRIS, LC No. 19-245176-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Defendant appeals as of right her jury-trial convictions for first-degree murder, armed
robbery, and unlawful imprisonment. On appeal, defendant argues that she was denied the right
to present a defense, her trial counsel was ineffective, multiple witnesses who testified on behalf
of the prosecutor invaded the province of the jury, and the prosecutor presented insufficient
evidence to support her convictions. In her Standard 4 brief, defendant further argues that her
convictions and sentences for first-degree premediated murder, first-degree felony murder, and
armed robbery violated her double-jeopardy protections. We affirm.
I. BACKGROUND
This case arises from the death of James Wappner, whose body was found just north of the
Michigan-Ohio border on December 3, 2018. At trial, the prosecutor presented evidence that
Wappner was killed on December 2, 2018, while attempting to sell drugs to defendant and her
boyfriend, Raymond Blanchong,1 inside a vehicle in the parking lot of the Bedford Inn in Monroe
County, Michigan. During trial, witness testimony and physical evidence linked both defendant
and Blanchong to the crime. Furthermore, the prosecutor introduced evidence intended to prove
1
Blanchong appealed his conviction and sentence in a separate appeal before this same panel.
People v Blanchong, Docket No. 352578.
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that defendant was not merely present when the crime occurred, but rather, actively participated
in the events that led to Wappner’s death, and later attempted to conceal her actions.
At trial, Matthew Richey testified that he discovered a body near a road just north of the
Michigan-Ohio border. Richey called 911, but he did not disturb the body and did not find any
money or drugs in the surrounding area. Paramedic Matthew Dunbar arrived at the scene, and
determined that the body had no cardiac activity. Dunbar testified that he did not find any money
or drugs in the surrounding area. Michigan State Police Trooper Eric Pearson arrived at the scene
after Dunbar, and he secured the area. Trooper Pearson testified that he did not move or otherwise
disturb the body. Trooper Pearson noted that the deceased individual’s pant pockets were turned
inside out, but he stated that he did not draw any conclusions from that fact. Trooper Lance Tedora,
who arrived at the scene shortly after Trooper Pearson, noticed tire tracks leading from the road to
the body. Trooper Tedora did not disturb the body and did not find any money or drugs in the
surrounding area. Trooper Jack Taeff brought a police canine to the scene to conduct an article
search, but he did not find any money, drugs, or other evidence. Trooper Taeff identified the
deceased individual as Wappner by using a mobile fingerprint scanner.
The Lenawee County medical examiner, Dr. Bader Cassin, performed the autopsy on
Wappner’s body. Dr. Cassin concluded that Wappner had received approximately 20 stab wounds,
three of which were fatal. Dr. Cassin also concluded that Wappner suffered “severe blunt force
injuries” to the back of his head. Although Dr. Cassin was unable to determine whether more than
one knife was used to stab Wappner, he did not rule out that possibility, and he opined that it would
not have taken a strong individual to inflict the injuries that caused Wappner’s death. According
to Dr. Cassin, Wappner died sometime between midnight on December 2, 2018, and dawn on
December 3, 2018.
Michigan State Police Detective Sergeant Michael Peterson testified that he investigated
Wappner’s death. After the discovery of Wappner’s body, he visited Wappner’s last known
residence and spoke with Wappner’s girlfriend, Shayla Wright. Upon interviewing Wright,
Sergeant Peterson learned that Wappner had two cell phones, one of which he used for the sale of
illegal drugs. Sergeant Peterson obtained search warrants for the cell phones and determined that
Wappner had received multiple telephone calls from a single phone number on the night of his
death. Sergeant Peterson was able to track the location of one of Wappner’s cell phones, which
led him to Brian Walker, who was in possession of the cell phone and Wappner’s vehicle.
Walker’s statements led Sergeant Peterson to obtain surveillance video footage from the
Bedford Inn, taken on the night of Wappner’s death. The video was played for the jury and
Sergeant Peterson narrated portions of the footage. According to Sergeant Peterson, the video
showed Wappner checking in to a room at the Bedford Inn on the night in question. Approximately
seven minutes after Wappner checked in, two individuals arrived in the parking lot in a Chevy
Avalanche. The driver of the Chevy Avalanche was a white male with a beard. The video showed
Wappner exit the Bedford Inn and enter the Chevy Avalanche on two occasions. On the second
occasion, the vehicle began to shake back and forth “as if there [was] a struggle going on inside
the vehicle.” Shortly after this occurred, the Chevy Avalanche left the parking lot.
Amber Klemper, a resident at the Bedford Inn, testified on behalf of the prosecutor. She
was in the parking lot of the Bedford Inn at approximately 11:50 p.m. on the night of Wappner’s
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death. She observed an altercation occurring in a maroon SUV in the parking lot. According to
Klemper, it appeared as if the individual sitting in the passenger seat of the vehicle was hitting the
individual sitting in the driver’s seat. Klemper stated that the individual in the driver’s seat was
male but that she could not determine if the individual in the passenger seat was male or female.
Shayla Wright testified that she was dating Wappner before his death, and she admitted
that Wappner made money by selling illegal drugs. According to Wright, when Wappner left
home about one day before his death, he had between $500 and $600 in cash on his person, as well
as “a lot of drugs,” including crack cocaine, marijuana, and pills. Wright also testified that she
recognized defendant because she had witnessed Wappner sell drugs to defendant and Blanchong
on three prior occasions. According to Wright, on two of those occasions, defendant and
Blanchong did not have enough money to complete the purchase from Wappner.
Walker also testified on behalf of the prosecutor. Walker stated that he arrived at the
Bedford Inn with Wappner at about 10:00 p.m. While on the way to the Bedford Inn, Walker
heard Wappner receive about six telephone calls from a woman who wanted to purchase cocaine.
Shortly after the two men arrived at the Bedford Inn, Wappner went to the parking lot with a
“pretty big bag” of cocaine, intending to sell drugs to the individual who had been calling him.
According to Walker, Wappner returned to the room after about 15 minutes, and stated that the
individual needed to retrieve money from a nearby ATM. During this conversation, Walker
noticed that Wappner had about $200 cash in his pocket. Wappner left the room again but did not
return. Walker waited for him until about 2:30 a.m., and then left the motel in Wappner’s vehicle.
Sergeant Peterson testified further regarding his investigation into Wappner’s death. He
determined from cell phone records that the telephone calls Wappner had received on the night of
his death were made from a telephone number associated with Blanchong and defendant. One
month before Wappner’s death, defendant was with Blanchong when he was arrested for an
unrelated crime in Toldeo, Ohio, while driving a Chevy Avalanche. As part of the booking
procedure, Blanchong gave the police a telephone number—the same telephone number from
which Wappner received multiple telephone calls on the night of his death. Sergeant Peterson
obtained photographs of Blanchong from his arrest one month before Wappner’s death, and those
photographs indicated that Blanchong was a white male with a beard.
Sergeant Peterson indicated that, later in December 2018, Blanchong and defendant were
arrested in Colorado, while driving a Chevy Avalanche. Sergeant Peterson traveled to Colorado
to interview both Blanchong and defendant. During his interview, Blanchong showed Sergeant
Peterson bite marks on his arm. Michigan State Police Detective Sergeant Larry Rothman assisted
with Blanchong’s interview, and he testified that Blanchong showed him bite marks on both his
arm and neck. The troopers also interviewed defendant, and a recording of her interview was
played for the jury. Sergeant Peterson testified that, in contrast to Blanchong, defendant did not
have any visible injuries on her body.
During Sergeant Peterson’s testimony, defendant’s trial counsel began to ask about
statements made by Blanchong during his interview, but the prosecutor objected on the basis of
hearsay. After the jury left the courtroom, defendant’s trial counsel stated that he intended to elicit
testimony from Sergeant Peterson that Blanchong told police that he was protecting himself and
defendant. Specifically, defense counsel sought to introduce the following statement made by
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Blanchong: “you want to hear my side of the story . . . . I was protecting her. I was protecting
myself.” Defense counsel argued that this testimony was admissible because Blanchong was an
unavailable witness under MRE 804(a)(5), and the statement constituted a statement against
interest under MRE 804(b)(3). After a recess, the trial court stated that defense counsel should
have addressed the admissibility of Blanchong’s statements before trial in a motion in limine. The
trial court further indicated, however, that Blanchong’s statement did not expose him to criminal
liability, and that it was not trustworthy given the context. Therefore, the trial court ruled that the
out-of-court statement was not admissible under MRE 804(b)(3), and excluded it from evidence.
After the jury returned, Sergeant Peterson testified that he also obtained surveillance video
from the Red Roof Inn in Toledo, Ohio, which showed Blanchong checking in at 1:24 a.m. on
December 3, 2018. Surveillance video from the Red Roof Inn was played for the jury, and
Sergeant Peterson stated that the video depicted defendant leaving the motel at 11:10 a.m. on
December 3, 2018. Sergeant Peterson determined that defendant and Blanchong left the Red Roof
Inn and went to a car wash in Toledo, Ohio. Surveillance video from the car wash was played for
the jury, and Sergeant Peterson stated that the video depicted Blanchong spraying the inside of the
Chevy Avalanche with a power washer and washing the vehicle with “cleaning chemicals” for
approximately one hour, while defendant assisted by vacuuming the inside of the vehicle.
After leaving the car wash, defendant and Blanchong traveled to the Quality Inn in Findlay,
Ohio. Surveillance video from the Quality Inn was played for the jury, and Sergeant Peterson
stated that it depicted defendant and Blanchong arriving at the Quality Inn.2 Sergeant Peterson
also stated that the video showed that the rear passenger-side window of the Chevy Avalanche was
broken. After leaving the Quality Inn, defendant and Blanchong traveled to Topeka, Kansas.
While there, defendant and Blanchong pawned the cell phone that was used to call Wappner on
the night of his death. Sergeant Peterson obtained the cell phone and determined that, between
December 2 and December 5, 2018, the individual using the cell phone had searched the internet
for “stabbing in Lenawee County area, homicide in Lenawee County, missing persons in Toledo,”
and court records for both Blanchong and defendant.
Joni Johnson, a forensic scientist at the Michigan State Police forensic laboratory, testified
as an expert in crime-scene processing and DNA analysis. Johnson searched Wappner’s vehicle
but did not find any drugs, money, or weapons. Johnson also searched the Chevy Avalanche, and
observed that the rear passenger-side window had been broken. Johnson photographed what
appeared to be bloodstains on the driver’s seat, behind the driver’s seat, behind the front passenger
seat, on the back seat, and on the ceiling of the vehicle. Johnson determined that the stains in the
vehicle were likely caused by blood, and she sent the samples to the laboratory for DNA analysis.
Amber Smith, another forensic scientist for the Michigan State Police, also testified as an
expert in crime-scene processing and DNA analysis. Smith collected and analyzed evidence found
in the rooms where defendant and Blanchong were believed to have stayed in the Quality Inn and
the Red Roof Inn. Smith collected samples of what appeared to be bloodstains that were found in
2
An employee of the Quality Inn testified that he found a cell phone that had been flushed down
a toilet, between December 3 and December 5, 2018. He surrendered that cell phone to police.
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those rooms. She testified that she did not find DNA from either defendant or Blanchong in the
samples taken from the Red Roof Inn, but that their DNA was present in the samples taken from
the Quality Inn. Smith also analyzed the blood samples that Johnson obtained from the Chevy
Avalanche. Smith concluded that Wappner’s DNA was present in three locations throughout the
vehicle.
Rachael Starr, an intelligence analyst at the Michigan Intelligence Operations Center, was
qualified as an expert witness in the analysis and mapping of cellular records, and she testified
regarding defendant’s cell phone records. Starr testified that defendant’s cell phone was located
near the Bedford Inn on the night of Wappner’s death, and that defendant made more than eight
calls to Wappner’s cell phone between 11:00 p.m. and 11:59 p.m. that night. Defendant’s cell
phone then moved north and connected to cellular towers near the location where Wappner’s body
was discovered. The cell phone then connected to cellular towers near the Red Roof Inn in Toledo,
Ohio, a car wash in Toledo, and a location near the Quality Inn in Findlay, Ohio. Finally, the cell
phone connected to cell towers across various states, demonstrating defendant’s flight to Topeka,
Kansas. Starr verified that, during this time, defendant’s cell phone never made any calls to 911.
Defendant chose to testify on her own behalf. During her testimony, defendant stated that
she began dating Blanchong in September 2018. She admitted that they both used cocaine and
marijuana, and that she and Blanchong had purchased drugs from Wappner “a handful of times.”
Defendant also admitted that she and Blanchong had attempted to purchase drugs from Wappner
on the night of his death. She stated that, when Wappner entered the back seat of the Chevy
Avalanche the first time, Blanchong told Wappner that they needed to retrieve more money to
complete the purchase. After a time, Blanchong and defendant returned to the parking lot of the
Bedford Inn, and Wappner entered the back seat of the vehicle a second time. Defendant testified
that a struggle ensued between Blanchong and Wappner inside the vehicle, and that Blanchong
was covered in blood. Defendant stated that she climbed into the driver’s seat of the vehicle while
the two men were fighting, and that she drove the vehicle away from the scene with both of them
in the vehicle. In contrast to Sergeant Rothman, who testified that the Chevy Avalanche was
equipped with child locks on the rear doors, defendant testified that the vehicle was unlocked while
Wappner was inside it. Finally, defendant admitted that, once Wappner lost consciousness,
Blanchong drove to a wooded area and dumped Wappner’s body by the side of the road before he
and defendant left the state.
Although defendant admitted that she was present when Wappner was killed, she
maintained that Blanchong was responsible and that she did not contribute to Wappner’s death.
Defendant further admitted that she fled Michigan with Blanchong after Wappner was killed, but
she claimed that she did so because Blanchong threatened her and her children. Defendant
admitted helping Blanchong clean his vehicle at the car wash after Wappner’s death, but again
claimed that she did so because Blanchong threatened her. Defendant admitted, however, that she
wrote a letter expressing her love for Blanchong while incarcerated, which evidence tended to
indicate that defendant was not afraid of Blanchong.
After the defense rested, the parties presented closing arguments. In relevant part, defense
counsel argued that defendant was merely present when Blanchong killed defendant. At the end
of trial, after discussing the jury instructions with counsel in chambers, the trial court asked the
parties whether they were satisfied with the instructions. Defendant’s trial counsel answered, “The
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defense is satisfied.” The trial court then read the instructions to the jury, and defendant’s trial
counsel raised no objections to the instructions as read. Therefore, defendant’s trial counsel
affirmatively approved the jury instructions read by the trial court.
The jury found defendant guilty of first-degree premeditated murder, MCL 750.316(1)(a),
first-degree felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, and unlawful
imprisonment, MCL 750.349b. The trial court sentenced defendant as a second-offense habitual
offender, MCL 769.10, to life imprisonment for first-degree murder, 300 to 600 months in prison
for armed robbery, and 120 to 170 months in prison for unlawful imprisonment. The trial court
amended the judgment of sentence to reflect that the jury convicted defendant of only one count
of first-degree murder, under two alternate theories, and that defendant received one sentence of
life imprisonment for first-degree murder.
This appeal followed.
II. ANALYSIS
A. RIGHT TO PRESENT A DEFENSE
Defendant first argues that she was denied the right to present a defense, for three reasons:
(1) the trial court erroneously excluded testimony concerning Blanchong’s statement to the police
after his arrest; (2) defendant’s trial counsel declined to introduce evidence that defendant had
previously been arrested while in possession of a large sum of money; and (3) the “mere presence”
instruction, M Crim JI 8.5, should have been read to the jury.
1. PRESERVATION AND STANDARDS OF REVIEW
“To preserve an issue for appellate review, a party must object below and specify the same
ground for objection that it argues on appeal.” People v Bosca, 310 Mich App 1, 46; 871 NW2d
307 (2015). Defendant’s trial counsel argued during trial that testimony concerning Blanchong’s
statement to the police was admissible under MRE 804. Therefore, the trial court’s ruling that this
evidence was inadmissible is preserved for appellate review. This Court reviews de novo both
constitutional claims and preliminary questions of law regarding the admissibility of evidence.
People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531 (2014). We review a trial court’s ultimate
decision regarding admissibility of evidence for an abuse of discretion, which occurs when the
trial court’s decision is outside the range of principled outcomes. Id.
At trial, however, defendant’s counsel did not address the applicability of M Crim JI 8.5,
did not mention evidence concerning defendant’s previous arrest, and did not assert that defendant
was deprived of the right to present a defense. Because these issues were neither raised before nor
decided by the trial court, they are unpreserved for appellate review. See Bosca, 310 Mich App at
46. Unpreserved claims of constitutional error are reviewed for plain error affecting a defendant’s
substantial rights. People v Brown, 326 Mich App 185, 192; 926 NW2d 879 (2019). Under a
plain-error analysis, “defendant must establish (1) that an error occurred, (2) that the error was
plain, and (3) that the plain error affected defendant’s substantial rights.” People v Kowalski, 489
Mich 488, 505; 803 NW2d 200 (2011). An error affects a defendant’s substantial rights if it affects
the outcome of the lower court proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d
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130 (1999). Reversal is warranted only when the plain error “resulted in the conviction of an
actually innocent defendant or when an error seriously affected the fairness, integrity or public
reputation of judicial proceedings independent of the defendant’s innocence.” Kowalski, 489 Mich
at 506 (cleaned up).
2. BLANCHONG’S STATEMENT TO THE POLICE
Defendant argues that the trial court erroneously excluded testimony concerning
Blanchong’s statement to the police after his arrest, thereby depriving defendant of the right to
present a defense. Specifically, defendant argues that the following out-of-court statement made
by Blanchong was admissible under MRE 804(b)(3): “you want to hear my side of the story . . . .
I was protecting her. I was protecting myself.”
“It is well-established that a criminal defendant has a constitutional right to a meaningful
opportunity to present a complete defense.” Bosca, 310 Mich App at 47 (cleaned up). Yet, the
“right to present a complete defense may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.” Id. (cleaned up). “Thus, an accused must still
comply with established rules of procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.” Id. (cleaned up). This includes compliance
with the Michigan Rules of Evidence. Id.
For an out-of-court statement offered to be admissible under MRE 804(b)(3) to exculpate
the accused at a criminal trial, the proponent of the statement must show that the declarant is
unavailable to testify, that the statement was against the declarant’s penal interest, and that
corroborating circumstances support the trustworthiness of the statement. People v Barrera, 451
Mich 261, 268; 547 NW2d 280 (1996). A statement is against a declarant’s penal interest if, at
the time the statement was made, it tended to subject the declarant to civil or criminal liability such
that a reasonable person in the declarant’s position would not have made the statement unless
believing it to be true. MRE 804(3). In determining whether corroborating circumstances support
the trustworthiness of a statement made by the declarant while in police custody, this Court
considers the following factors: (1) the relationship between the confessing party and the
exculpated party; (2) whether the confessing party made a voluntary statement after being advised
of his Miranda rights; and (3) whether there is any evidence that the statement was made in order
to curry favor with the authorities. Barrera, 451 Mich at 275.
Assuming without deciding that Blanchong was unavailable to testify under MRE
804(a)(1), we nonetheless conclude that his out-of-court statement was inadmissible and that the
trial court properly excluded the statement from evidence. First, Blanchong’s statement to the
police was not against his penal interest because the statement did not tend to subject Blanchong
to criminal liability at the time he made it. Taken in context, Blanchong’s statement to the police
indicated that he was acting in defense of both himself and defendant when he killed Wappner.
“In Michigan, the killing of another person in self-defense is justifiable homicide if the defendant
honestly and reasonably believes that his life is in imminent danger or that there is a threat of
serious bodily harm.” People v Kurr, 253 Mich App 317, 320; 654 NW2d 651 (2002) (cleaned
up). Further, Michigan law “also allows a person to use deadly force in defense of another.” Id.
Because the bite marks on Blanchong’s body supported his claim of self-defense, and Blanchong
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asserted that he was acting in defense of both himself and defendant, Blanchong’s statement to the
police did not tend to subject Blanchong to criminal liability.
Further, corroborating circumstances did not support the trustworthiness of Blanchong’s
statement. The evidence indicated that defendant and Blanchong were in a romantic relationship
when Blanchong made the statement to the police. Thus, he had an incentive to make exculpatory
statements on defendant’s behalf. Further, Blanchong’s statement exculpated both himself and
defendant. Because Blanchong’s statement was not against his penal interest and corroborating
circumstances did not support the trustworthiness of the statement, it was inadmissible, and the
exclusion of the statement did not deprive defendant of the right to present a defense.
3. DEFENDANT’S PRIOR ARREST
Defendant further argues that she was denied the right to present a defense when her trial
counsel declined to introduce evidence that defendant had previously been arrested while in
possession of a large sum of money. As explained earlier, we review this unpreserved issue for
plain error affecting defendant’s substantial rights.
Defendant argues that her trial counsel should have admitted evidence at trial that
defendant was arrested, on a prior occasion, while in possession of $38,000. Defendant argues
that such evidence would have supported her theory that she did not need to rob or kill Wappner
to obtain drugs. We conclude that defendant has not shown that this purported error affected the
outcome of her trial, that any error resulted in the conviction of an actually innocent defendant, or
that any error seriously affected the fairness, integrity, or public reputation of judicial proceedings.
As explained above, Wright testified that she was familiar with defendant and Blanchong,
having witnessed Wappner sell them drugs on three prior occasions. According to Wright, on two
of those occasions, defendant and Blanchong did not have enough money to complete the
purchase. Wright also testified that Wappner had between $500 and $600 in cash on his person
one day before his death, as well as “a lot of drugs.” Meanwhile, Walker testified that Wappner
had about $200 in cash on his person, along with a “pretty big bag” of cocaine, when he went to
meet defendant and Blanchong in the parking lot of the Bedford Inn. Eyewitness testimony and
video evidence indicated that Wappner entered the Chevy Avalanche to sell drugs to defendant
and Wappner, the vehicle shook with the force of the altercation that occurred inside, and the
vehicle drove off with Wappner still inside. When his body was found, no drugs or money were
located and his pockets were turned inside out, indicating that defendant and Blanchong had
emptied his pockets when they dumped his body at the side of the road. This evidence tended to
indicate that Wappner was robbed by defendant and Blanchong.
Evidence that defendant was arrested, on a prior occasion, while in possession of $38,000,
did not tend to prove that defendant lacked a motive to participate in a robbery of Wappner on the
night in question. In fact, defendant’s prior arrest may have prejudiced defendant by leading the
jurors to conclude that defendant had a propensity to commit crimes. Further, the admission of
the evidence may have caused the jurors to speculate and draw an unfavorable conclusion
regarding the origin of the money defendant possessed on that earlier occasion. Additionally, it is
unlikely that any benefit defendant would have received from the admission of the evidence would
have outweighed the potential prejudicial effect of the evidence. Notably, the fact that defendant
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possessed a large sum of money in the past does not mean that defendant possessed a large sum of
money at the time of Wappner’s death. Accordingly, defendant has failed to establish that plain
error occurred when her trial counsel failed to present evidence concerning her prior arrest.
4. JURY INSTRUCTIONS
Defendant further argues that she was denied the right to present a defense when the trial
court failed to read the “mere presence” instruction, M Crim JI 8.5. As explained earlier,
defendant’s counsel affirmatively approved the jury instructions. “A defendant waives an issue
by expressly approving of the trial court’s action,” and a “defendant may waive his or her challenge
to jury instructions.” People v Miller, 326 Mich App 719, 726; 929 NW2d 821 (2019) (citation
omitted). When the trial court asks whether a party has any objections to the jury instructions and
the party responds negatively, it is an affirmative approval of the trial court’s instructions resulting
in waiver of any later challenge to the instructions. Kowalski, 489 Mich at 504 n 27. “Waiver
extinguishes any error, leaving nothing for this Court to review.” Id. (citation omitted). Defendant
has waived appellate review of this issue, and we therefore decline to address it.
Given our resolution of the above issues, we conclude that defendant was not denied the
right to present a defense.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues that her trial counsel rendered ineffective assistance. Defendant
preserved this issue for appeal by filing a motion to remand with this Court. See People v
Abcumby-Blair, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 347369); slip op at
6. This Court denied defendant’s motion. People v Morris, unpublished order of the Court of
Appeals, entered December 9, 2020 (Docket No. 351875). Therefore, our review is for errors
apparent on the record. Id. “Whether a defendant has been deprived of the effective assistance of
counsel presents a mixed question of fact and constitutional law.” People v Johnson, 315 Mich
App 163, 174; 889 NW2d 513 (2016) (citation omitted). A trial court’s findings of fact, if any,
are reviewed for clear error, while questions of constitutional law are reviewed de novo. Id. A
trial court’s finding is clearly erroneous if the reviewing court is left with a definite and firm
conviction that a mistake has been made. People v Lopez, 305 Mich App 686, 693; 854 NW2d
205 (2014).
A defendant seeking relief based upon a claim of ineffective assistance of counsel bears
the burden of showing “(1) that trial counsel’s performance was objectively deficient, and (2) that
the deficiencies prejudiced the defendant.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249
(2018) (citation omitted). “A counsel’s performance was deficient if it fell below an objective
standard of professional reasonableness. The performance prejudiced the defense if it is
reasonably probable that, but for counsel’s error, the result of the proceeding would have been
different.” People v Fyda, 288 Mich App 446, 450; 793 NW2d 712 (2010). There is a strong
presumption that counsel’s conduct fell within a wide range of professional assistance. People v
LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). Thus, defendant must overcome the strong
presumption that the challenged action might be considered sound trial strategy. Id.
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1. DEFENDANT’S PRIOR ARREST
Defendant argues that her trial counsel was ineffective by failing to present evidence that
she was previously arrested while in possession of a large sum of money. We conclude that trial
counsel’s performance did not fall below an objective standard of reasonableness. As explained
above, evidence concerning defendant’s prior arrest may have prejudiced defendant by leading the
jurors to conclude that defendant had a propensity to commit crimes, and may have caused the
jurors to speculate and draw an unfavorable conclusion regarding the origin of the money
defendant possessed. Additionally, it is unlikely that any benefit defendant would have received
from the admission of the evidence would have outweighed the potential prejudicial effect of the
evidence. For these reasons, trial counsel’s performance did not fall below an objective standard
of reasonableness, and defendant has failed to overcome the strong presumption that the
challenged action might be considered sound trial strategy. Furthermore, the alleged deficiency
did not prejudice defendant. Therefore, defendant is not entitled to relief on this issue.
2. JURY INSTRUCTIONS
Defendant next argues that her trial counsel was ineffective by failing to request that the
trial court include M Crim JI 8.5 in the jury instructions and by failing to object when the trial
court did not do so. Assuming without deciding that trial counsel’s performance fell below an
objective standard of reasonableness in this regard, the omission of M Crim JI 8.5 did not constitute
plain error affecting defendant’s substantial rights.
“A criminal defendant has the right to have a properly instructed jury consider the
evidence” against her. People v Quinn, 305 Mich App 484, 493; 853 NW2d 383 (2014) (cleaned
up). “The jury instructions must include all elements of the crime charged, and must not exclude
from jury consideration material issues, defenses or theories if there is evidence to support them.”
People v Armstrong, 305 Mich App 230, 240; 851 NW2d 856 (2014) (cleaned up).
M Crim JI 8.5 provides: “[e]ven if the defendant knew that the alleged crime was planned
or was being committed, the mere fact that [he / she] was present when it was committed is not
enough to prove that [he / she] assisted in committing it.” M Crim JI 8.5. During her testimony,
defendant stated that she was present when Blanchong killed Wappner but maintained that she did
not contribute to Wappner’s death. Thus, whether defendant was merely present when Wappner
was killed was a material issue in this case. For this reason, defense counsel’s failure to request
the instruction or object to its omission cannot be considered sound trial strategy. Nevertheless,
our review of the whole record indicates that this deficiency did not prejudice defendant.
During trial, the prosecutor presented evidence from multiple sources indicating that
defendant was not merely present when the crime occurred but that she actively participated in the
events that led to Wappner’s death. Starr testified that Wappner received multiple telephone calls
from defendant’s cell phone just before Wappner was killed. Walker testified that he could hear
Wappner speaking on the phone with a woman, thereby indicating that Wappner was speaking
with defendant rather than Blanchong. Thus, the evidence indicated that defendant arranged for
the meeting that ultimately led to Wappner’s death. Moreover, Wright testified that defendant and
Blanchong did not have enough money to purchase drugs from Wappner on two prior occasions,
thereby indicating that defendant and Blanchong may have had a reason to rob Wappner.
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Furthermore, Dr. Cassin was unable to rule out the possibility that more than one knife was used
to stab Wappner and opined that it would not have taken a strong individual to inflict the injuries
that caused Wappner’s death. When Wappner’s body was found, the money and drugs that were
in his possession when he met defendant and Blanchong were missing. Lastly, the prosecutor
presented evidence that defendant attempted to conceal evidence relating to her involvement in
Wappner’s death by helping to clean the interior of Blanchong’s vehicle after Wappner’s death
and by selling her cell phone in Topeka, Kansas. Although defendant claimed that she fled with
Blanchong after Wappner was killed because Blanchong threatened her, defendant acknowledged
that she wrote a letter expressing her love for Blanchong while incarcerated, thereby indicating
that defendant was not afraid of Blanchong.
All of the above evidence tended to indicate that defendant was not merely present when
the crime occurred, but rather, actively participated in the events that led to Wappner’s death and
later attempted to conceal her actions. For these reasons, it was not reasonably probable that, but
for trial counsel’s failure to request the reading of a mere-presence instruction, the outcome of the
proceedings would have differed.
3. BLANCHONG’S STATEMENT TO THE POLICE
Defendant also argues that her trial counsel was ineffective because he failed to file a
motion in limine seeking to admit the out-of-court statement that Blanchong made to the police.
The record demonstrates that the attempt by defendant’s trial counsel to introduce
Blanchong’s out-of-court statement to the police was not denied simply because counsel failed to
raise the issue in a motion in limine. During trial, defendant’s counsel argued that the statement
was admissible because Blanchong was an unavailable witness, and because the statement
constituted a statement against interest under MRE 804(b)(3). Although the trial court admonished
defendant’s trial counsel for failing to raise the issue in a motion in limine, the trial court ultimately
determined that Blanchong’s statement was not admissible under MRE 804(b)(3).
Even assuming for the sake of argument that defense counsel’s performance was
objectively deficient because defense counsel failed to raise the issue in a motion in limine,
defendant has failed to establish that she was prejudiced by the purported deficiency. As
previously stated, the trial court correctly determined that Blanchong’s statement was not
admissible under MRE 804(b)(3). Thus, even if defense counsel had raised the issue in a motion
in limine, Blanchong’s statement would have been inadmissible, and the outcome of the
proceedings would not have differed. For these reasons, defendant has failed to establish that her
trial counsel was ineffective by failing to address the admissibility of Blanchong’s out-of-court
statement to the police in a motion in limine.
4. SURVEILLANCE VIDEO FOOTAGE
Defendant further argues that Sergeant Peterson’s narration of the surveillance video
footage played at trial invaded the province of the jury, and that her trial counsel was ineffective
for failing to object to the narration testimony. As later discussed in greater detail, Sergeant
Peterson invaded the province of the jury by specifically identifying defendant as one of the
individuals depicted in the surveillance video footage. Nevertheless, defendant has failed to
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overcome the presumption that defense counsel’s decision not to object to the sergeant’s testimony
constituted sound trial strategy. Although his identification testimony bolstered the prosecution’s
theory regarding defendant’s whereabouts on the night of Wappner’s death and in the days
following Wappner’s death, defendant admitted during her own testimony that she was present at
each of the locations depicted in the surveillance video footage. Thus, defendant’s trial counsel
may have declined to object to Sergeant Peterson’s identification testimony because the same
information would later be elicited from defendant.
Even assuming for the sake of argument that the performance of defendant’s trial counsel
fell below an objective standard of reasonableness, the failure to object to the sergeant’s
identification testimony did not affect the outcome of the proceedings. Indeed, the jurors could
have determined that defendant was one of the individuals depicted in the surveillance video
footage based on Starr’s testimony regarding the location of defendant’s cell phone at those times
or defendant’s own testimony that she was present at each location. Accordingly, defendant has
failed to establish that defense counsel was ineffective for failing to object to Sergeant Peterson’s
identification testimony.
C. INVASION OF PROVINCE OF THE JURY
Defendant next argues that the testimony of witnesses called by the prosecutor invaded the
province of the jury and deprived her of a fair trial.
“To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001) (citations omitted). During trial,
defendant’s counsel did not object to Sergeant Peterson’s testimony concerning the surveillance
video footage on the basis that the testimony invaded the province of the jury, and defendant’s
counsel did not object when the prosecutor inquired as to the conclusion Trooper Pearson reached
when he found Wappner’s pockets turned inside out. Thus, this issue is unpreserved, and we
review it for plain error affecting the defendant’s substantial rights. People v Benton, 294 Mich
App 191, 202; 817 NW2d 599 (2011).
MRE 701 permits a lay witness to provide testimony in the form of an opinion if the opinion
is “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of
the witness’ testimony or the determination of a fact in issue.” MRE 701. A witness cannot,
however, “express an opinion on the defendant’s guilt or innocence of the charged offense.”
People v Fomby, 300 Mich App 46, 53; 831 NW2d 887 (2013) (cleaned up). For this reason, if a
witness is in no better position than the jury to identify a defendant in a video or still photograph,
the witness’s opinion testimony identifying the person is generally inadmissible as an invasion of
the province of the jury. Id. at 52-53. Conversely, if a witness is in a better position than the jury
to identify a defendant in a video or still photograph, the witness’s opinion testimony does not
invade the province of the jury. Id. at 52.
1. DETECTIVE SERGEANT PETERSON
Defendant challenges Sergeant Peterson’s identification of defendant as an individual in
the surveillance video footage as well as his general narration of the events that were depicted. As
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explained, we conclude that: (1) a clear and obvious error occurred when Detective Sergeant
Peterson identified defendant as one of the individuals depicted in the surveillance video footage;
(2) although a clear or obvious error occurred, the error did not affect the outcome of the
proceedings; and (3) a clear and obvious error did not occur when Sergeant Peterson narrated the
events that took place in the surveillance video footage.
Identification Testimony. While Sergeant Peterson was narrating the surveillance video
footage, he identified defendant as one of the individuals in the footage. Considering that the
videos were played for the jury at trial, there was no indication that Sergeant Peterson had
substantial and sustained contact with defendant, and there was no indication that defendant’s
appearance had changed since the videos were taken, Sergeant Peterson was in no better position
than the jury to identify a person in the videos. Thus, his testimony invaded the province of the
jury.
Nevertheless, the portions of Sergeant Peterson’s testimony that invaded the province of
the jury did not affect the outcome of the proceedings. At trial, other evidence was presented
concerning defendant’s whereabouts following Wappner’s death, linking defendant to the crime.
Notably, the jurors could have determined that defendant was one of the individuals depicted in
the surveillance video footage taken at the Bedford Inn on the night of Wappner’s death based on
Starr’s testimony regarding the location of defendant’s cell phone at that time or defendant’s own
testimony that she was present when Wappner was killed. Further, the jurors could have
determined that defendant was one of the individuals depicted in the surveillance video footage
taken at the Red Roof Inn, the car wash, and the Quality Inn based on Starr’s testimony regarding
the location of defendant’s cell phone at those times or defendant’s own testimony that she was
present at each location. For these reasons, plain error did not affect the outcome of the
proceedings.
Narration Testimony. Defendant further challenges Sergeant Peterson’s general narration
of the events that were depicted in the surveillance video footage. Defendant does not identify any
specific testimony that invaded the province of the jury but generally argues that any narration of
the surveillance video footage invaded the province of the jury. Sergeant Peterson’s narration
testimony was rationally based on his perception of the video and was helpful to provide a clear
understanding of the significance of the events that transpired before and after Wappner’s death,
as well as how the evidence ultimately led to defendant’s arrest. Thus, his narration testimony was
admissible as lay witness testimony under MRE 701 and did not invade the province of the jury.
2. TROOPER PEARSON
During trial, Trooper Pearson testified that Wappner’s pant pockets were turned inside out
when his body was found. The prosecutor asked whether Trooper Pearson drew any conclusions
from that fact, and the trooper stated that he did not. Trooper Pearson did not invade the province
of the jury because he did not express an opinion on defendant’s guilt or innocence of any charged
offense. Indeed, Trooper Pearson’s testimony was limited to his perception of Wappner’s body
on the night it was found, and Trooper Pearson testified that he did not draw any conclusions from
the fact that Wappner’s pant pockets were turned inside out. In short, there is simply no indication
that Trooper Pearson’s testimony invaded the province of the jury.
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D. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the prosecutor failed to present sufficient evidence to support
her convictions for armed robbery, unlawful imprisonment, first-degree felony murder, and first-
degree premeditated murder. Defendant’s arguments are unpersuasive.
“This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence
supporting his or her conviction,” reviewing the evidence “in a light most favorable to the
prosecution to determine whether a rational trier of fact could find that the prosecution proved the
crime’s elements beyond a reasonable doubt,” Miller, 326 Mich App at 735.
1. ARMED ROBBERY
Defendant argues that the evidence presented at trial was too speculative to establish that
a larceny occurred. To convict a defendant of armed robbery under MCL 750.529, it is necessary
to establish the following:
(1) the defendant, in the course of committing a larceny of any money or other
property that may be the subject of a larceny, used force or violence against any
person who was present or assaulted or put the person in fear, and (2) the defendant,
in the course of committing the larceny, either possessed a dangerous weapon,
possessed an article used or fashioned in a manner to lead any person present to
reasonably believe that the article was a dangerous weapon, or represented orally
or otherwise that he or she was in possession of a dangerous weapon. [People v
Gibbs, 299 Mich App 473, 490-491; 830 NW2d 821 (2013) (cleaned up).]
The phrase “in the course of committing a larceny” includes “acts that occur in an attempt to
commit the larceny, or during commission of the larceny, or in flight or attempted flight after the
commission of the larceny, or in an attempt to retain possession of the property.” MCL 750.530(2).
Although the armed-robbery statute does not define the term “dangerous weapon,” MCL 750.529,
knives are generally considered to be dangerous weapons. See People v Banks, 454 Mich 469,
473; 563 NW2d 200 (1997).
Although the prosecutor presented little direct evidence establishing that defendant
committed a larceny, he presented circumstantial evidence that defendant did so. Walker testified
that he was with Wappner at the Bedford Inn on the night of his death. Walker stated that Wappner
was in possession of drugs and at least $200 in cash when Wappner went to the parking lot to sell
drugs to two individuals. Surveillance video footage and defendant’s own testimony revealed that
Wappner entered Blanchong’s Chevy Avalanche in order to sell drugs to Blanchong and
defendant. After Wappner entered the Chevy Avalanche, a struggle ensued, and the Chevy
Avalanche could be seen shaking back and forth. After a short period, the Chevy Avalanche was
driven out of the Bedford Inn parking lot with Wappner still inside. The following day, Wappner’s
body was found and it was determined that Wappner died as a result of approximately 20 stab
wounds. When Wappner’s body was found, Wappner’s pockets were turned inside out and
Wappner did not have any drugs or cash on his person. Evidence was also presented that defendant
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and Blanchong did not have enough money to purchase drugs from Wappner on two prior
occasions, thereby indicating that defendant and Blanchong had a reason to rob Wappner. This
evidence could have led a rational trier of fact to determine that defendant took the money and
drugs from Wappner by force while using a knife. “Circumstantial evidence and reasonable
inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.”
Carines, 460 Mich at 757 (cleaned up). The prosecutor presented sufficient evidence to support
defendant’s conviction for armed robbery.
2. UNLAWFUL IMPRISONMENT
Defendant next argues that there was insufficient evidence to support defendant’s
conviction for unlawful imprisonment because the prosecution failed to prove that Wappner was
restrained or secretly confined.
The offense of unlawful imprisonment is set forth in MCL 750.349b as follows:
(1) A person commits the crime of unlawful imprisonment if he or she knowingly
restrains another person under any of the following circumstances:
(a) The person is restrained by means of a weapon or dangerous instrument.
(b) The restrained person was secretly confined.
(c) The person was restrained to facilitate the commission of another felony
or to facilitate flight after commission of another felony. [See Bosca, 310
Mich App at 18, citing MCL 750.349b.]
The term restrain means “to forcibly restrict a person’s movements or to forcibly confine the
person so as to interfere with that person’s liberty without that person’s consent or without lawful
authority.” MCL 750.349b(3)(a). Restraint need not occur for any particular length of time.
Bosca, 310 Mich App at 19. “The restraint does not have to exist for any particular length of time
and may be related or incidental to the commission of other criminal acts.” Id. The term “secretly
confined” means either “[t]o keep the confinement of the restrained person a secret[,]” or “[t]o
keep the location of the restrained person a secret.” MCL 750.349b(4).
The essence of “secret confinement” as contemplated by the statute is deprivation
of the assistance of others by virtue of the victim’s inability to communicate his
predicament. “Secret confinement” is not predicated solely on the existence or
nonexistence of a single factor. Rather, consideration of the totality of the
circumstances is required when determining whether the confinement itself or the
location of confinement was secret, thereby depriving the victim of the assistance
of others. [Bosca, 310 Mich App at 19 (cleaned up).]
In this case, the prosecutor presented sufficient evidence to support defendant’s conviction
for unlawful imprisonment. First, a rational trier of fact could have concluded that defendant
knowingly restrained Wappner by means of a weapon. At trial, the prosecutor presented evidence
that a struggle ensued after Wappner entered the Chevy Avalanche. When Wappner’s body was
found the next day, it was determined that he died as a result of approximately 20 stab wounds.
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When the Chevy Avalanche was recovered, Wappner’s DNA was found inside the vehicle, thereby
indicating that Wappner had been stabbed during the struggle inside the vehicle. Evidence was
also presented that the Chevy Avalanche was equipped with child locks and that one of the rear
windows was broken, thereby indicating that Wappner may have attempted to escape but was
unable to do so. Based upon this evidence, a rational trier of fact could have concluded that
defendant knowingly restricted Wappner’s movements by means of a weapon.
Next, a rational trier of fact could have concluded, based on a totality of the circumstances,
that Wappner was secretly confined in the Chevy Avalanche. During trial, Klemper testified that
she observed some sort of struggle occurring in the Chevy Avalanche but was unable to determine
what exactly transpired inside the vehicle. Evidence was presented that the Chevy Avalanche was
equipped with child locks and that one of the rear windows in the Chevy Avalanche was broken,
thereby indicating an unsuccessful attempt to escape. Perhaps most notably, defendant admitted
that she climbed into the driver’s seat of the Chevy Avalanche and drove it out of the Bedford Inn
parking lot, with Wappner still inside, shortly after the struggle ensued. Thus, Wappner was unable
to communicate his predicament to those outside of the vehicle and was ultimately deprived of the
assistance of others. Based upon this evidence, a rational trier of fact could have concluded that
Wappner was secretly confined in the Chevy Avalanche.
Lastly, a rational trier of fact could have concluded that Wappner was restrained to
facilitate the commission of another felony or to facilitate flight after commission of another
felony. As previously stated, the prosecutor presented evidence that Wappner was the victim of
an armed robbery. Further, defendant and Blanchong fled with Wappner still inside the Chevy
Avalanche. Thus, a rational trier of fact could have concluded that Wappner was restrained to
facilitate the commission of an armed robbery or to facilitate flight after the commission of an
armed robbery.
3. FELONY MURDER
Defendant further argues that there was insufficient evidence to support her conviction for
first-degree felony murder because there was insufficient evidence to support her convictions for
the predicate offenses of armed robbery and unlawful imprisonment.
At the outset, we note that the sole predicate offense for first-degree felony murder in this
case was armed robbery. Although the felony information did not specifically list the predicate
offense or offenses supporting defendant’s conviction for first-degree felony murder, the trial court
instructed the jury that the sole predicate offense for first-degree felony murder was armed robbery.
Neither party raised any objection to the first-degree felony murder jury instruction. Jurors are
presumed to follow their instructions. People v Unger, 278 Mich App 210, 235; 749 NW2d 272
(2008). It therefore follows that the sole predicate offense for first-degree felony murder in this
case was armed robbery, and the parties’ assertions to the contrary lack merit.
Further, defendant challenges only the sufficiency of the evidence supporting the third
element of first-degree felony murder. Our analysis will be limited to the scope of defendant’s
argument. The elements of first-degree felony murder are (1) the killing of a human being, (2)
with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily
harm with knowledge that death or great bodily harm was the probable result, and (3) while
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committing, attempting to commit, or assisting in the commission of any of the felonies
specifically enumerated in MCL 750.316(1)(b). People v Smith, 478 Mich 292, 318-319; 733
NW2d 351 (2007). Larceny is a felony specifically enumerated in MCL 750.316(1)(b). MCL
750.316(1)(b). As previously stated, the prosecutor presented sufficient evidence to support
defendant’s conviction for armed robbery, which requires a finding that a larceny occurred. For
this reason, there was sufficient evidence to support defendant’s conviction for first-degree felony
murder.
4. PREMEDITATED MURDER
Defendant further argues that there was insufficient evidence to support her conviction for
first-degree premeditated murder. The elements of first-degree murder are (1) the intentional
killing of a human (2) with premeditation and deliberation. People v Oros, 502 Mich 229, 240;
917 NW2d 559 (2018). “Because of the difficulty of proving an actor’s state of mind, minimal
circumstantial evidence is sufficient to establish a defendant’s intent to kill.” Unger, 278 Mich
App at 223. “Premeditation may be established through evidence of (1) the prior relationship of
the parties, (2) the defendant’s actions before the killing, (3) the circumstances of the killing itself,
and (4) the defendant’s conduct after the homicide.” Id. at 229. “Some time span between the
initial homicidal intent and the ultimate killing is necessary to establish premeditation and
deliberation.” Id. “Circumstantial evidence and reasonable inferences drawn from the evidence
may constitute satisfactory proof of premeditation and deliberation.” Id.
During closing arguments, the prosecutor relied, in part, on an aiding and abetting theory.
Generally, to convict a defendant of aiding and abetting a crime, it is necessary to establish that:
(1) the crime charged was committed by the defendant or some other person; (2) the defendant
performed acts or gave encouragement that assisted the commission of the crime; and (3) the
defendant intended the commission of the crime or had knowledge that the principal intended its
commission at the time that the defendant gave aid and encouragement. Carines, 460 Mich at 757-
758. “An aider and abettor’s state of mind may be inferred from all the facts and circumstances.”
Id. at 758. “Factors that may be considered include a close association between the defendant and
the principal, the defendant’s participation in the planning or execution of the crime, and evidence
of flight after the crime.” Id.
A rational trier of fact could have concluded that defendant intentionally killed Wappner
or aided and abetted Blanchong in doing so. Defendant admitted that she was present in the vehicle
where Wappner appeared to have been killed following a struggle. Although there was no direct
evidence establishing that defendant killed Wappner herself, “[c]ircumstantial evidence and
reasonable inferences arising from that evidence can constitute satisfactory proof of the elements
of a crime.” Carines, 460 Mich at 757 (cleaned up). Further, the fact that Wappner was stabbed
approximately 20 times provides circumstantial evidence defendant intended to kill Wappner,
either alone or with Blanchong’s assistance.
A rational trier of fact could have concluded that defendant killed Wappner with
premeditation and deliberation. The parties had a prior relationship in which Wappner sold
defendant and Blanchong illegal drugs. Wright testified that, on two prior occasions, defendant
and Blanchong did not have enough money to purchase drugs from Wappner, thereby indicating
that defendant and Blanchong had a reason to kill Wappner and take his possessions. Additionally,
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defendant and Blanchong had attempted to purchase drugs from Wappner earlier that same evening
but told Wappner they needed to retrieve more money from a nearby ATM. According to
defendant’s own testimony, defendant and Blanchong did not retrieve money from an ATM before
returning to the Bedford Inn, thereby indicating that defendant and Blanchong planned to take
Wappner’s possessions. Moreover, after leaving the Bedford Inn, defendant and Blanchong left
Wappner’s body on the side of the road, attempted to conceal evidence by washing the Chevy
Avalanche, and fled to Colorado. The actions of defendant and Blanchong provide further
circumstantial evidence of premeditation and deliberation. Based upon the foregoing, there was
sufficient evidence to support defendant’s conviction for first-degree premeditated murder.
E. DOUBLE JEOPARDY
Defendant next argues that her convictions violated double-jeopardy protections. To
preserve a double jeopardy issue, a defendant must raise the issue at trial. People v Wilson, 242
Mich App 350, 359; 619 NW2d 413 (2000). Because defendant failed to raise this issue at trial, it
is unpreserved for appellate review. Generally, “[a] double jeopardy challenge presents a question
of constitutional law that this Court reviews de novo.” Smith, 478 Mich at 298. This Court reviews
for plain error unpreserved claims that a defendant’s double jeopardy rights have been violated.
People v Matuszak, 263 Mich App 42, 47; 687 NW2d 342 (2004).
1. FELONY MURDER AND PREMEDITATED MURDER
In her Standard 4 brief, defendant argues that her convictions and sentences for both first-
degree premeditated murder and first-degree felony murder violated double-jeopardy principles.
Although we agree that defendant’s initial convictions and sentences for both first-degree
premeditated murder and first-degree felony murder violated double-jeopardy principles,
defendant has already been afforded the proper remedy such that this aspect of the issue is moot.
“The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution
provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or
limb.’ ” People v Miller, 498 Mich 13, 17; 869 NW2d 204 (2015), citing US Const, Am V. “The
Michigan Constitution similarly provides that ‘[n]o person shall be subject for the same offense to
be twice put in jeopardy.’ ” Id., citing Const 1963, art 1 § 15.
The prohibition against double jeopardy protects individuals in three ways: (1) it
protects against a second prosecution for the same offense after acquittal; (2) it
protects against a second prosecution for the same offense after conviction; and (3)
it protects against multiple punishments for the same offense. The first two
protections comprise the successive prosecutions strand of double jeopardy, while
the third protection is known as the multiple punishments strand. [Id. (cleaned up).]
This Court has held that “convicting a defendant of both first-degree premeditated murder
and first-degree felony murder arising out of the death of a single victim is a violation of double-
jeopardy protection.” People v Orlewicz, 293 Mich App 96, 112; 809 NW2d 194 (2011). Yet,
this Court “will uphold a single conviction for murder based on two alternative theories.” Id.
(citation omitted). “Accordingly, the proper remedy when a defendant is convicted of both first-
degree premeditated murder and first-degree felony murder arising out of the death of a single
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victim is to modify the conviction to specify that it is for a single count of first-degree murder
supported by two theories.” Id.
In this case, defendant was initially convicted of both first-degree premeditated murder and
first-degree felony murder arising out of the death of a single victim. The trial court, however,
amended the judgment of sentence to reflect that defendant was convicted of one count of first-
degree murder based on two alternate theories. The amended judgment of sentence also reflected
that defendant was sentenced for only one count of first-degree murder. Accordingly, defendant
has already been afforded the proper remedy such that this Court cannot fashion any additional
remedy, and this aspect of the issue is moot. See Gen Motors Corp v Dep’t of Treasury, 290 Mich
App 355, 386; 803 NW2d 698 (2010).
2. FELONY MURDER AND THE PREDICATE OFFENSE OF ARMED ROBBERY
In her Standard 4 brief, defendant also argues that her convictions and sentences for both
first-degree felony murder and the predicate offense of armed robbery violated double jeopardy
principles. This argument is without merit.
The double-jeopardy clauses of the United States Constitution, US Const, Am V, and the
Michigan Constitution, Const 1963, art 1 § 15, protect a criminal defendant from multiple
punishments for the same offense. Miller, 498 Mich at 17. Michigan courts apply the same-
elements test to determine whether two offenses constitute the same offense for purposes of double
jeopardy. Smith, 478 Mich at 317. Where both offenses have an element that the other does not,
the offenses do not constitute the same offense for purposes of double jeopardy. Id. at 296.
In People v Ream, 481 Mich 223, 242; 750 NW2d 536 (2008), the Michigan Supreme
Court held that convicting and sentencing a defendant for first-degree felony murder and the
underlying predicate felony does not necessarily violate double jeopardy. The defendant in Ream
was convicted of first-degree felony murder and the predicate felony of first-degree criminal sexual
conduct. Id. at 241. The Court upheld the convictions and the corresponding sentences, reasoning
that first-degree felony murder was not the same offense as first-degree criminal sexual conduct
for purposes of double jeopardy. Id. The Court explained that felony murder “contains an element
not included in first-degree criminal sexual conduct, namely, the killing of a human being,” and
“first-degree criminal sexual conduct contains an element not necessarily included in first-degree
felony murder, namely, a sexual penetration.” Id. The Court further explained that any number
of felonies, not just those involving sexual penetration, can support a conviction of felony murder
such that the defendant’s conviction of the predicate felony did not violate double jeopardy. Id. at
241-242.
The Supreme Court has also held that first-degree felony murder is not the same offense as
armed robbery. See Smith, 478 Mich at 319. In doing so, the Court reasoned that “[f]irst-degree
felony murder contains elements not included in armed robbery—namely a homicide and a mens
rea of malice.” Id. “Likewise, armed robbery contains elements not necessarily included in first-
degree felony murder—namely that the defendant took property from a victim’s presence or person
while armed with a weapon.” Id. Because armed robbery and felony murder both require proof
of an element that the other does not, and any number of felonies can support a conviction for
felony murder, armed robbery and felony murder are not the same offense for purposes of double
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jeopardy. Accordingly, plain error did not occur when defendant was sentenced for armed robbery
and first-degree murder under two alternate theories, one of which was felony murder.
Affirmed.
/s/Michael J. Riordan
/s/ Jane E. Markey
/s/ Brock A. Swartzle
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